United States v. Varner

• Citation: 400 F.2d 369
• Decision Date: 13 September 1968
• Docket Number: No. 24983.,24983.
• Parties: UNITED STATES of America, Appellant, v. James S. VARNER et al., Appellees. James S. VARNER and Mrs. Virginia M. Varner, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 369 (1968)

UNITED STATES of America, Appellant, v. James S. VARNER et al., Appellees.

James S. VARNER and Mrs. Virginia M. Varner, Appellants, v. UNITED STATES of America, Appellee.

No. 24983.

United States Court of Appeals Fifth Circuit.

September 13, 1968.

COPYRIGHT MATERIAL OMITTED

Morton Hollander, William Kanter, Howard J. Kashner, Attys., Dept. of Justice, Washington, D. C., W. Sidney Fuller, Andalusia, Ala., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for the United States.

Frank J. Tipler, Jr., Andalusia, Ala., Hugh G. Head, Jr., Atlanta, Ga., for James S. Varner and another.

Charles M. Goetz, Jr., Atlanta, Ga., for Andy Electric Co.

Before GEWIN and THORNBERRY, Circuit Judges, and EDENFIELD, District Judge.

THORNBERRY, Circuit Judge:

James S. Varner and his wife instituted this suit under the Federal Tort Claims Act, 28 U.S.C. § 1346, against the Government for personal injuries sustained by Mr. Varner while working at Dobbins Air Force Base. Andy Electric Company, Varner's employer, had entered into a contract with the Government to remove some of the old electric poles on the base, replace them with new poles, and transfer the wiring from the old to the new poles. One of the conditions of this contract was that all of the work was to be performed while the lines were deenergized (cold-line contract). Grover Buchanan, the Government general supervisor for electrical contractors at Dobbins, was to accomplish his deenergization by opening the air-break switch on Pole # 184.

After Varner and Hicks, the Company foreman, ascertained that the area had been deenergized, Hicks climbed a pole and cut the middle line. Each line is equipped with "jumpers" that enable the lines to be cut off pole-by-pole, thus reducing the danger of feedback. Hicks did not cut the jumpers on the remaining lines on the pole. After cutting one line, Hicks accompanied Varner up the next pole and began transferring the lines. Meanwhile, in order that the mess hall would not be without service, Grover Buchanan was engaged in installing a temporary service line. A line disconnect was made to prevent feedback to the main line. After this temporary line was finished, Grover decided to activate the main line by closing the air-break switch. He sent Oley Buchanan, a Government lineman, to ask Hicks if he "could make the line hot." Hicks said, "No." Several minutes later, Oley returned to see if he could then make the line hot, but Hicks again said "No." Oley then said, "Well, we're going to turn on the line to the mess hall." Hicks answered, "OK, but make darn sure this one's not hot." Oley then returned to his brother Grover, who was standing by the air-break switch from which point he could plainly see Varner and Hicks still on the pole, and said "make it hot." Grover then threw the switch and activated the entire line, sending 7200 volts of electricity through Varner.

The district court, sitting without a jury, found that the sole and proximate cause of Varner's injuries was the negligent closing of the air-break switch by Grover Buchanan. The court awarded Varner $96,710 for his personal injuries and his wife $25,000 for loss of consortium. The district court also found that Andy Electric was not negligent and denied the United States' third-party claim. The United States appeals from the denial of its third-party action and from the award of interest from the date of the judgment. Varner has cross-appealed, claiming that the damages are inadequate.

I.

The Government first contends that it is entitled to indemnity from Andy Electric Company, Varner's employer, on the ground that the failure of the Company's foreman Hicks to disconnect all the jumpers on the pole constituted negligent failure to take proper precautions to protect the workers.¹ The district court rejected this claim, reasoning that it was unnecessary for Hicks to disconnect all the jumpers because under the contract the Government was to deenergize the whole area. The Government maintains, however, that Hicks should have guarded against the risk that the Government's agents would fail to deenergize the area, and further that although the likelihood of injury was remote, the degree of danger involved was great enough that Hicks' failure to cut all the jumpers was negligent. We are unable to conclude, however, that the district court's holding that Hicks acted free of negligence, in light of the cold-line provisions of the contract, was clearly erroneous. Accordingly, this portion of the judgment is affirmed.

Secondly, the Government contends that the district judge erred in awarding interest of four percent from the date of judgment. The Government bases its argument on 31 U.S.C. § 724a which provides that when a final judgment not in excess of $100,000 in any one case is taken against the United States interest shall be paid only when the judgment becomes final on appeal and then only from the date of the filing of the transcript in the General Accounting Office to the date of the mandate of affirmance. The judgment in this case awarded James Varner $96,710 for his personal injuries and awarded Mrs. Varner $25,000 for loss of consortium. Each award is less than $100,000 but the total award exceeds $100,000. Thus the question is whether 31 U.S.C. § 724a applies to total judgments not in excess of $100,000 or to individual judgments not in excess of $100,000.

The legislative history is unclear with regard to the meaning of "one case" in 31 U.S.C. § 724a, although the primary purpose in establishing this permanent appropriation was to provide for the prompt payment of judgments and thereby to eliminate or reduce the costs of interest. See Chicago, Rock Island & Pacific R. R. Co. v. United States, S.D. Iowa 1962, 206 F.Supp. 795; H.R.Rep. No. 2638, 84th Cong., 2d Sess. 72 (1957). In United States v. State of Maryland for Use of Meyer, 1965, 121 U.S.App.D.C. 258, 349 F.2d 693, the court held that "one case" within 31 U.S.C. § 724a means "one claimant," so that each individual party can obtain prompt payment of his claim if it does not exceed $100,000, and thus is only entitled to interest from the date of the filing of the transcript. The court reasoned that each claimant has a severable and specific award...